WALTER LEROY MOODY, JR., PETITIONER V. UNITED STATES OF AMERICA
No. 90-6769
In The Supreme Court Of The United States
October Term, 1990
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Eleventh Circuit
Brief For The United States In Opposition
OPINIONS BELOW
The order of the court of appeals (Pet. App. 2-4) denying
petitioner's petition for a writ of mandamus is not reported. The
order of the district court (Pet. App. 14-25) denying petitioner's
motion to recuse the district judge is not reported.
JURISDICTION
The judgment of the court of appeals was entered on December 4,
1990. The petition for a writ of certiorari was filed on January 2,
1991. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).
QUESTION PRESENTED
Whether the court of appeals properly denied petitioner's petition
for a writ of mandamus seeking the disqualification of the district
court judge who presided over his trial.
STATEMENT
1. In a 13-count indictment returned in the Middle District of
Georgia, petitioner was charged with conspiring to obstruct justice
and commit other offenses (18 U.S.C. 371), obstructing justice (18
U.S.C. 1503), obstructing a criminal investigation (18 U.S.C.
1510(a)), suborning perjury (18 U.S.C. 1622), bribing a witness (18
U.S.C. 201(c)(2)), and tampering with a witness (18 U.S.C. 1512(b)).
The indictment charged that petitioner had committed these offenses
while procuring false testimony to support an application for relief
from a 1972 pipe-bombing conviction and obstructing a grand jury
investigation into that application. Pet. App. 29-59.
At the time of the indictment, petitioner was widely reported to be
a suspect in the 1989 murders of Judge Robert Vance, a member of the
United States Court of Appeals for the Eleventh Circuit, and Robert E.
Robinson, a lawyer who practiced in Savannah. /1/ By order dated
October 4, 1990, Chief Judge Wilbur D. Owens, Jr., of the Middle
District of Georgia, recused himself, reported that the remaining
judges in that district were also unwilling to hear the case, and
asked the Chief Judge of the Eleventh Circuit to designate a judge
from another district to preside over the case. Pet. App. 26. Chief
Judge Tjoflat entered an order, pursuant to 28 U.S.C. 292(b),
designating Judge Anthony A. Alaimo of the Southern District of
Georgia to hear the case. /2/
2. Petitioner filed motions in the district court seeking Judge
Alaimo's recusal under 28 U.S.C. 144 and 455. Pet. App. 5-13. The
affidavit filed pursuant to Section 144 stated that petitioner was a
target of an investigation into the murder of Mr. Robinson; that Mr.
Robinson had been a prominent member of the Savannah bar who practiced
in the Southern District of Georgia; and that Judge Alaimo presided
over that district, in which the murder occurred. On this basis, the
affidavit asserted that Judge Alaimo's "close relationship with Mr.
Robinson gives him an extra-judicial source of personal bias against
(petitioner) because of allegations made about (petitioner's)
involvement in his death." Id. at 11. The affidavit also averred that
petitioner was the target of a grand jury investigation of Judge
Vance's murder; that Judge Alaimo had served by designation on the
Eleventh Circuit "on numerous occasions"; and that the judge's "close
personal relationship with that Court gives him an extra-judicial
source of personal bias against (petitioner) because of allegations
made about (petitioner's) involvement in" Judge Vance's murder. Id.
at 12. In his Section 455 motion, petitioner argued that the same
circumstances would cause a reasonable person to doubt Judge Alaimo's
impartiality. Id. at 5-8.
Judge Alaimo denied the motions for recusal. Pet. App. 14-25. He
noted that Robinson "(was) not a witness, victim, or attorney to this
witness-tampering case" and that "(a)t most, his death bears a highly
tangential relationship to the subject matter of this suit." Id. at
20. Further, Judge Alaimo continued, the personal and professional
ties set forth in the affidavit -- i.e., the fact that Robinson was
admitted to practice and was killed in the district in which Judge
Alaimo sits -- "are simply too attenuated to raise even a reasonable
appearance of impropriety." Ibid.
With respect to Judge Vance, Judge Alaimo observed that "(a)bsent a
strong personal interest, prior contact with the victim of the crime
or the defendant in a civil suit is an insufficient basis of recusal."
Pet. App. 21. After reviewing cases involving such associations,
Judge Alaimo concluded that "the bias alleged (Judge Vance's death)
and the subject matter of this case (tampering with a witness) are
unrelated" and that "the mere fact that (Judge Alaimo) was acquainted
with Judge Vance is simply too attenuated an interest" to create an
appearance of partiality. Id. at 23.
3. Petitioner took an appeal from the denial of his motions and, in
the alternative, petitioned for a writ of mandamus directing Judge
Alaimo to recuse himself. The Chief Justice designated three judges
from the Fourth Circuit to hear the appeal and the petition for
mandamus. Pet. App. 3. /3/
The panel dismissed the appeal for lack of appellate jurisdiction,
holding that "an interlocutory appeal does not lie from the denial of
a motion to disqualify a trial judge." Pet. App. 3. The court denied
the petition for mandamus on the merits, concluding (id. at 3-4):
Accepting (petitioner's) factual allegations as being true, we
find nothing that would cast the district court judge's
impartiality in doubt to reasonable people in this case. We
hold that he acted within his discretion in refusing to
disqualify himself.
4. The case proceeded to trial before Judge Alaimo. On December
14, 1990, the jury returned guilty verdicts on all counts. The
petition for a writ of certiorari was filed thereafter.
We are advised that sentencing has been deferred pending the
outcome of petitioner's trial on the indictment arising out of Judge
Vance's murder. Judge Alaimo is not presiding over that case, which
has been assigned to Judge Edward J. Devitt (D. Minn.) sitting by
designation. Petitioner has not moved to recuse Judge Devitt.
ARGUMENT
1. Petitioner contends (Pet. 5-10) that the court of appeals should
have issued a writ of mandamus directing Judge Alaimo to recuse
himself.
"The traditional use of the writ in aid of appellate jurisdiction
both at common law and in the federal courts has been to confine an
inferior court to a lawful exercise of its prescribed jurisdiction or
to compel it to exercise its authority when it is its duty to do so."
Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943); see, e.g.,
Mallard v. United States District Court, 490 U.S. 296, 309 (1989);
Kerr v. United States District Court, 426 U.S. 394, 402 (1976). "To
ensure that mandamus remains an extraordinary remedy," applicants for
the writ "must show that they lack adequate alternative means to
obtain the relief they seek, * * * and carry 'the burden of showing
that (their) right to issuance of the writ is "clear and
indisputable."'" Mallard v. United States District Court, 490 U.S. at
309.
Petitioner made no such showing in this case. Far from
demonstrating a clear and indisputable entitlement to a writ of
mandamus, petitioner presented no facts of the sort required by
Section 144 /4/ or Section 455 /5/ to justify Judge Alaimo's recusal
-- i.e., facts showing that the judge was actually biased against
petitioner or that his impartiality could reasonably be questioned.
Sections 144 and 455(b)(1) require recusal upon a showing that a
district judge has an actual "personal bias or prejudice" concerning a
party to the case. Because a judge is presumed to be impartial, the
party seeking recusal "has a substantial burden to overcome the
presumption with factual allegations of personal bias stemming from
(an) extra judicial source." United States v. Baskes, 687 F.2d 165,
170 (7th Cir. 1981). In the absence of actual bias or prejudice,
Section 455(a) requires a judge to "disqualify himself in any
proceeding in which his impartiality might reasonably be questioned."
The inquiry is an objective one: whether a reasonable person, aware
of all the facts, would have a reasonable basis for questioning the
judge's impartiality. E.g., In Re Drexel Burnham Lambert Inc., 861
F.2d 1307, 1313 (2d Cir. 1988), cert. denied, 490 U.S. 1102 (1989);
Blalock v. United States, 844 F.2d 1546, 1552 (11th Cir. 1988); In re
Beard, 811 F.2d 818, 827 (4th Cir. 1987); United States v. Greenough,
782 F.2d 1556, 1558 (11th Cir. 1986); United States v. Harrelson, 754
F.2d 1153, 1165 (5th Cir.), cert. denied, 474 U.S. 908 (1985).
District courts exercise substantial discretion in applying this
standard. In re Drexel Burnham Lambert Inc., 861 F.2d at 1312. A
"trial judge must carefully weigh the policy of promoting public
confidence in the judiciary against the possibility that those
questioning his impartiality might be seeking to avoid the adverse
consequences of his presiding over their case." Ibid.
Judged by these standards, petitioner's motions were plainly
insufficient to warrant Judge Alaimo's recusal. The record does not
suggest that Judge Alaimo had any social or personal relationship with
either attorney Robinson or Judge Vance of the sort that might call
his impartiality into question. A judge's "background of experiences,
associations and viewpoint" is not enough to require recusal; rather,
"a reasonable suspicion of bias will usually arise only in the
presence of such factors as a financial or strong personal interest in
one of the litigants." Brody v. President & Fellows of Harvard
College, 664 F.2d 10, 11 (1st Cir. 1981), cert. denied, 455 U.S. 1027
(1982). The professional relationships that a judge necessarily
develops in the course of his duties ordinarily present no basis for
recusal. See United States v. Harrelson, 754 F.2d at 1164-1166;
Parrish v. Board of Commissioners, 524 F.2d 98 (5th Cir. 1975) (en
banc), cert. denied, 425 U.S. 944 (1976). Moreover, "(p)rior contact
with the victim of a crime is not sufficient to show judicial bias."
United States v. Story, 716 F.2d 1088, 1091 (6th Cir. 1983). /6/
Petitioner makes no effort to demonstrate that the decision in this
case is inconsistent with standards applied in any other decision.
Indeed, this case presents an even less substantial basis for recusal
than United States v. Harrelson, supra, the most closely analogous
case. In Harrelson, the defendants were tried before Judge William S.
Sessions, who at the time was a federal judge of the Western District
of Texas, on charges arising from the murder of John H. Wood, Jr.,
also a federal judge of that district. Judge Sessions had known and
worked with Judge Wood for eight or nine years, had served as an
honorary pallbearer at Judge Wood's funeral, and had eulogized him at
several memorial ceremonies. 754 F.2d at 1164-1165. Nonetheless, the
court of appeals rejected the contention that Judge Sessions was under
any obligation to recuse himself, finding that such circumstances fell
"far short of casting his impartiality in doubt to reasonable people."
Id. at 1166. Here, likewise, petitioner failed to present any facts
demonstrating that Judge Alaimo had an actual bias or that the Judge's
partiality could reasonably be questioned.
2. After petitioner's petition for mandamus was denied, the case
proceeded to trial before Judge Alaimo, and the jury returned guilty
verdicts on all counts. Under these circumstances, there is no reason
to consider petitioner's disqualification claim on review of the
denial of his petition for mandamus. When a final judgment has been
entered in the district court, petitioner may raise that claim on
appeal from his conviction and, if necessary, in a petition for a writ
of certiorari seeking review of an unfavorable court of appeals'
decision. /7/
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
ROBERT S. MUELLER, III
Assistant Attorney General
DEBORAH WATSON
Attorney
MARCH 1991
/1/ Petitioner was subsequently indicted in the Northern District
of Georgia on a 70-count indictment charging him with the murders of
Judge Vance and Mr. Robinson and related offense. United States v.
Moody, No. 1:90-CR-383 (N.D. Ga.). Pet. App. 60-78.
/2/ Petitioner challenged the appointment in proceedings that
culminated in a petition to this Court for a writ of mandamus
requiring Judge Tjoflat to vacate the appointment. On January 7,
1991, this Court denied the petition for a writ of mandamus. 111 S.
Ct. 715.
/3/ On February 27, 1990, all active and senior judges of the
Eleventh Circuit, "acting on their own initiative," recused themselves
from a civil action, to which petitioner was a party, that sought
access to search warrants issued in connection with the investigation
of Judge Vance's murder, as well as from "any other cases relating to
the investigation of the murder of the Honorable Robert S. Vance in
which (petitioner) is a party." Pet. App. 28.
/4/ Section 144 provides, in pertinent part:
Whenever a party to any proceeding in a district court makes
and files a timely and sufficient affidavit that the judge
before whom the matter is pending has a personal bias or
prejudice either against him or in favor of any adverse party,
such judge shall proceed no further therin, but another judge
shall be assigned to hear such proceeding.
/5/ Section 455 provides, in pertinent part:
(a) Any justice, judge, or magistrate of the United States
shall disqualify himself in any proceeding in which his
impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following
circumstances:
(1) Where he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary facts
concerning the proceeding.
/6/ Petitioner suggests in passing (Pet. 5, 8) that Judge Alaimo
was obligated to appoint another judge to conduct a hearing on
petitioner's Section 144 motion. However, Section 144 requires a
presiding judge to assign another judge to conduct the recusal hearing
only if there has been filed a "sufficient affidavit that the judge
before whom the matter is pending has a personal bias or prejudice
either against him or in favor of any adverse party." In this case,
the statements in petitioner's affidavit, taken as true, were
insufficient to require the trial judge's recusal. There was thus no
need for a hearing before a different judge.
/7/ The Seventh Circuit has held that a claim under Section 455(a)
is reviewable only on a petition for a writ of mandamus, and not on
direct appeal. E.g., Durhan v. Neopolitan, 875 F.2d 91, 97 (1989);
Union Carbide Corp. v. U.S. Cutting Service, Inc., 782 F.2d 710,
712-713 (1986); United States v. Balistrieri, 779 F.2d 1191,
1204-1205 (1985), cert. denied, 475 U.S. 1095 (1986). That court has
reasoned that, when a challenge to a judge is based solely on an
appearance of impropriety, a defendant who has been convicted cannot
show that his substantial rights were affected by the judge's refusal
to recuse himself and any injury to the public's confidence in the
legal system is complete. The Eleventh Circuit has not, to our
knowledge, taken a position on this issue. But in any event, the
Seventh Circuit's reasoning is as much a bar to a post-trial request
for a writ of mandamus as it is to a direct appeal. No purpose would
be served, even under the Seventh Circuit's reasoning, by further
review of petitioner's request for a writ of mandamus.
Because no final judgment has been entered and the case remains
pending before Judge Alaimo, petitioner's request for a writ of
mandamus is technically not moot. See Pet. 10. Petitioner is
mistaken, however, in suggesting that the question presented is
capable of repetition. The other case pending against petitioner has
been assigned to a different judge, whom petitioner has not sought to
recuse. There is no indication that petitioner will have any occasion
in the future to challenge Judge Alaimo's ability to preside over a
similar case.